BWK15 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 268
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BWK15 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 268
File number: MLG 3521 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 27 February 2025 Catchwords: MIGRATION – Application for judicial review – application to extend time for filing – where Applicant previously filed application for review in the Court – where previous application in the Court was dismissed – where Applicant seeks to re-litigate claims that should have been raised earlier – where delay in filing is extensive without sufficient explanation – application to extend the time for filing is refused – application dismissed. Legislation: Migration Act 1958 (Cth) ss 375A, 438, 438(1)(a), 477(1), 477(2), 477A(2), 477A(2)(b). Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
BWK15 v Minister for Immigration & Anor [2016] FCCA 3185
Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470
CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
MFAFZ v Minister of Immigration and Border Protection [2016] FCA 1081
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Number of paragraphs: 45 Date of hearing: 12 February 2025 Place: Melbourne Advocate for the Applicant: In Person, via Microsoft Teams Solicitor for the Respondents: Mr Gardner of Mills Oakley ORDERS
MLG 3521 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWK15
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application filed on 22 November 2018 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 25 August 2015. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa (‘visa’) (Court Book (‘CB’) 280). The application before me has been filed out of time. The Applicant therefore seeks (in addition to the substantive relief sought) orders to extend the time for the filing the application.
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Chinese national. The Applicant arrived in Australia on 10 April 2009 on a tourist visa (CB 281).
On 20 April 2009, the Applicant applied for a protection visa (‘first PV application’). That application was made in circumstances where his wife was the primary applicant. The first PV application was refused on 17 July 2009 by a delegate of the Minister.
On 17 July 2009, a delegate of the Minister purported to issue a certificate under section 438(1)(a) of the Migration Act 1958 (Cth) (‘Act’) (‘non-disclosure certificate’). The non-disclosure certificate was sent to the Tribunal. It applied to what was described as folios 53-54 of file number CLF2009/53301. A delegate indicated in the non-disclosure certificate that disclosure of those folios would be contrary to the public interest because they contain internal working documents and business affairs.
The applicants in the first PV application sought review of the delegate’s decision in the then Refugee Review Tribunal (‘RRT’). On 18 December 2009, the RRT affirmed the delegate’s decision with respect to the first PV application.
On 29 November 2013, the Applicant applied for the visa the subject of these proceedings (‘second PV application’).
On 31 July 2014, the Applicant attended a protection visa interview (‘PV interview’) (CB 240).
On 21 August 2014, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 228).
The Applicant subsequently applied to the Tribunal to review the decision of the delegate with respect to the second PV application. On 25 August 2015, the Tribunal affirmed the decision not to grant the Applicant the visa (‘2015 Decision’)(CB 275).
On 14 September 2015, the Applicant filed an application in this Court to review the 2015 Decision. The Application was heard and then dismissed on 9 December 2016: see BWK15 v Minister for Immigration & Anor [2016] FCCA 3185 (‘first JR proceeding’).
On 22 November 2018, the Applicant filed the application that is before the Court (‘Application’). The Applicant asks the Court, again, to review the 2015 Decision. The Application is accompanied by an affidavit from the Applicant filed 22 November 2018.
At the Hearing before me, the Applicant relied on his Application and his supporting affidavit. He did not file any amended application or an outline of submissions despite being given the opportunity to do so. The Minister filed a Court Book and written submissions which were relied on.
THE APPLICATION TO EXTEND THE TIME FOR FILING
The 2015 Decision was made on 25 August 2015. The Application was filed on 22 November 2018, more than three years later.
Under section 477(1) of the Act, an application of the type before me must be made to this Court within 35 days of the decision of the Tribunal. Under section 477(2) of the Act, the Court may extend the 35-day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
The Applicant seeks an extension of time to file the Application. The Minister opposes time being extended.
Principles
The expression ‘in the interests of the administration of justice’ is not defined in the Act.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (‘Katoa’), a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [12] with respect to the similar provision at sections 477A(2) of the Act:
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
(footnotes omitted)
Further, at [13], the majority noted and endorsed the well-established guiding principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles identify the following matters as requiring consideration:
(a)the extent of the delay;
(b)the explanation of the delay;
(c)any prejudice to the respondents;
(d)the interests of the public at large; and
(e)the merits of the substantive application. It is appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’ (Katoa at [17]; CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452 [19]).
Further, in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, Mortimer J at [63] considered that the correct approach to the assessment of the merits of the proposed application for the purpose of deciding whether to extend time ‘may be expressed by the use of language such as whether the ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”’.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J discussed the history and rationale for limitation periods. At 553-554 of the judgment, His Honour stated:
‘In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced" But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.’
(footnotes omitted)
In Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470 (‘Marks’), the High Court of Australia was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating that the case would need to be ‘exceptional’ before the time for commencing proceedings was enlarged by many, many months.
It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:
‘Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.’
I now turn to consider the application to extend time by reference to the principles above.
The length of the delay
The length of the delay in filing the Application is significant. To adopt what the High Court said in Marks, the present case needs to ‘exceptional’ before time can be extended. I also adopt what McHugh J said at [16] of Marks as set out earlier in these reasons. Those comments are apposite to the present matter.
The explanation for the delay
In his affidavit, the Applicant states that the Tribunal ‘failed to disclose the certificate under section 438 and/or 375A’ of the Act in the course of reviewing his case. The Applicant also deposes that the ‘non-disclosure of certificate contravening the procedure fairness was not considered by the Court when I lodged my first judicial review application in 13 September 2015’ (sic). In the Application, the Applicant states that ‘I just came to know failure to disclose the certificate issued under section 438 and/or 375A of the Act is reviewable’.
In neither the Application nor his affidavit does the Applicant identify when he came to know of the existence of the non-disclosure certificate, and the existence of the folios to which it pertains. I asked the Applicant during the hearing when he became aware of the existence of the non-disclosure certificate. The Applicant told me from the bar table that he first found out about the non-disclosure certificate and the documents to which it pertains in July 2009. Plainly, that answer directly contradicts what the Applicant set out in his Application – that he ‘just came to know [of the] failure to disclose the certificate’.
In light of the above, I do not accept that the Applicant only came to know of the existence of the non-disclosure certificate at or around the time he filed the Application. I consider the Applicant knew of the existence of the non-disclosure certificate in July 2009. Given the Applicant has known of the existence of the non-disclosure certificate since July 2009, his apparent explanation for the delay in filing the Application – that he only found out about the non-disclosure certificate at or around the time he filed the Application – cannot be accepted.
It is clear that the Applicant’s knowledge of the non-disclosure certificate preceded the application to the RRT in respect of the first PV application, the making of the second PV application, and the application to the Tribunal in respect of the second PV application (which resulted in the 2015 Decision, being the decision under review). It also preceded the hearing and determination of the first JR proceeding.
The Applicant offered no other reason or explanation for the delay in filing. The Applicant does not have a reasonable or sufficient explanation for the delay in filing the present Application.
Prejudice
It is of some significance that the Applicant has already sought judicial review of the 2015 Decision. Thus, the Minister is being put through the time and cost, again, of having to litigate this matter. This is not a case in which it can be said no prejudice to the Minister arises.
Merits of the substantive application
Before me, the Applicant submitted it was unfair that he did not know of the existence of the non-disclosure certificate prior to his matter being determined by the Tribunal. For the reasons set out previously, that cannot be accepted. The Applicant was aware of the existence of the non-disclosure certificate prior to the making of the second PV application, and the subsequent referral of the rejection of that application to the Tribunal in 2015.
The substantive Grounds of Review set out in the Application are as follows:
1.The Tribunal failed to disclose the existence or content of any certificate issued pursuant to s438 or s375A of the Act.
2.The Tribunal failed to disclose the extent to which the Tribunal was proposing to take into account the material covered by the certificate.
It is not immediately clear to me how the Applicant can say the Tribunal failed to disclose the existence of the non-disclosure certificate when he knew about it in July 2009, prior to the RRT’s determination of the first PV application. Ground 1 of the Grounds of Review as it is expressed in its present form is not sufficiently arguable.
It seems another way to understand the Applicant’s complaint is that he has been denied procedural fairness because he did not have either knowledge of the non-disclosure certificate, was not informed of the content of the documents the subject of the non-disclosure certificate, or that the Tribunal did not inform him of how it would take account of the material the subject of the non-disclosure certificate.
To the extent the Applicant seeks to advance these arguments, in my view, they are not sufficiently arguable for the following reasons.
The Applicant was aware of the existence of the non-disclosure certificate from July 2009. If he wanted to take issue with it in the ways he now claims, he had opportunity to do so from that time. He had the assistance of a representative at the time he filed the second PV application, and he was represented by an agent in the Tribunal proceedings leading up to the 2015 Decision (though the agent did not appear at the hearing in the Tribunal). He also had the opportunity to agitate any issues about the non-disclosure certificate in the first JR proceedings. On this last point, I observe that decisions dealing with the issue raised by the Applicant, including MFAFZ v Minister of Immigration and Border Protection [2016] FCA 1081, were decided and handed down prior to the first JR application before the Court. Accordingly, the Applicant was in a position to raise and argue the point he now raises in the first JR application. Any claim of procedural unfairness that is said to arise now is not sufficiently arguable.
Second, the Applicant’s case is not sufficiently arguable because it is likely to be considered an abuse of process. Alternatively, the propositions now advanced are ones the Applicant is likely to be estopped from pursuing: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
In Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560 (‘Plaintiff S3’), Gageler J considered an application for judicial review commenced in the original jurisdiction of the High Court of Australia. At paragraph [5] of his reasons, Gageler J observed that the application had been heard and dismissed in both the Federal Magistrates Court (as it then was), and in the Federal Court of Australia. At paragraph [8], Gageler J observed that in the matter before him, the first point raised by the applicant had been dealt with on the merits by the Federal Court, that the second point raised by the applicant before him could have been raised in the Federal Magistrates Court, and with leave could have been raised in the Federal Court. At [9] – [10], Gageler J then stated:
In University of Wollongong v Metwally (No 2) the High Court unanimously stated:
"Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
In D'Orta-Ekenaike v Victoria Legal Aid, the joint judgment of four members of the High Court described "[a] central and pervading tenet of the judicial system": "controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances". Their Honours continued:
"The tenet … finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding."
(footnotes omitted)
At [14], Gageler J then stated:
The plaintiff's application in the original jurisdiction of the High Court seeks to re-litigate claims that either were made or could and should have been made in the earlier proceeding she brought in the Federal Magistrates Court and which she took on appeal to the Federal Court. Her application is an abuse of the process of the High Court and will be dismissed accordingly pursuant to r 27.09.4(c) of the High Court Rules 2004.
This matter is all fours with Plaintiff S3. The Applicant seeks to relitigate claims that could and should have been made in the first JR application. His application is not sufficiently arguable because it is likely to be found an abuse of process that he should be prevented from pursuing in the present proceeding. The only basis on which the Applicant could pursue a claim is if he could demonstrate special circumstances exist such that he should be permitted to bring the proceeding. He has not identified any special circumstances. Lack of awareness of an argument does not constitute a special circumstance. Further, consideration of the issues at an impressionistic level leads to the assessment that the Applicant is likely to be estopped from pursuing his claim.
For the above reasons, the Applicant does not have a sufficiently arguable case.
When all of the matters above are taken into account (length of the delay, explanation for the delay, prejudice and the merits of the case), it is not in the interests of the administration of justice to extend the time for filing.
For the above reasons, the application to extend time for filing is dismissed. The Application will be dismissed.
CONCLUSION
The Applicant has been entirely unsuccessful. The Minister seeks costs of $5,400. That amount exceeds the amount set out in the scale for an interlocutory hearing. In the circumstances where no reason is advanced as to why costs exceed the scale, I will award costs in accordance with the scale of $4,189.38.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 27 February 2025
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